nell (a), Clements v. Flight (b), and Whitehead v. Harrison. (c) Byles, Serjt., now shewed cause. The proposed plea is clearly a bad one. This matter underwent very full discussion in Gledstane v. Hewit (d), where, to a count in detinue, on the bailment of a promissory note, to be re-delivered on request, the defendant pleaded that the plaintiff had deposited the note with him to be kept as a pledge and security for the re-payment of a loan of 501.; and the plaintiff replied a tender of the 50l.; and this was held to be no departure. On the part of the defendant, it was submitted that the replication was a departure; that it did not support the declaration, but contained matter which would defeat the right of action as stated in the declaration; that the contract stated in the plea, and admitted by the replication, was totally different from that stated in the declaration, the one alleging a general bailment, the other a bailment for a special purpose, which might and ought to have been traversed in the replication: and Kettle v. Bromsall (e) and Mills v. Graham (g) were cited. But Bayley, B., said: "The nature of the action of detinue is, that the detainer is the gist of the action. The plaintiff must make out that he was entitled to the delivery of the article, and that the defendant wrongfully detained it; and, if he can do that, he has done all that is necessary to maintain his action. He is not bound to shew the circumstances under which the article came into the defendant's hands. It may have come into the defendant's hands by bailment, by pledge, which is a species of bailment, by finding, or by other means. The action of detinue is an action of wrong (h), and it is only necessary (a) 12 M. & W. 683. (g) 1 N. R. 140. (h) But detinue (at least, detinue on a bailment) may be joined with debt. 1849. CLOSSMAN V. WHITE. 1849. CLOSSMAN บ. WHITE. to prove so much as is material: and the question in If no plea that plaintiff did not bail as laid, for, the bailment is not traversable, and the defendant shall answer to the detinue." (a) So, Dyer (b), in detinue for forty quarters of wheat, the plaintiff declared simply on a contract for wheat, &c.; the defendant pleaded, that the plaintiff bought of him eighty quarters, upon condition that, when plaintiff came for the wheat, he should pay immediately, or otherwise the whole to be void; and, further, that the plaintiff had received thirty quarters, and paid him for them, and, at another day, came and received ten quarters, and had not paid for them, so that the contract became void; thus not traversing the contract as stated in the declaration, simpliciter, but going on to state circumstances which would justify him in withholding the corn. Then the question was raised, whether the defendant ought not (a) For this position, Lord Brooke cites an original case, -not reported in the Year Books, of 3 H. 4. And see the placitum in Brooke translated, 7 Vin. Abr. p. 33, pl. 8. (b) Anon. fo. 29. b. But, although that case is intituled "Detinue," it is obvious that the action was not detinue,i. e. an action brought to recover in specie the possession of certain specific goods, - but debt in the detinet, to enforce the delivery of a certain quantity. The plaintiff declared upon the non-delivery to him of 40 quarters of wheat, which he alleged he had contracted to buy of the defendant. No possession was laid in the plaintiff; nor was there any allegation of transfer or change of the possession, by bailment, finding, or otherwise. The defendant might have satisfied the en tion, by the delivery of any 40 The case in Dyer appears to 1849. CLOSSMAN v. WHITE. 1849. CLOSSMAN บ. .WHITE. to have concluded his plea with a traverse; because, it was said, the plaintiff states an unconditional contract, which binds the defendant to deliver at all events, and the defendant says it is a conditional contract. No, said the court, that ought to come from the plaintiff. If the plaintiff means to insist that there was not such a contract as that stated in the plea, but such as his declaration implies, he should state it in his replication. Now, that case shews that the statement in the declaration is not a statement which binds the plaintiff, but that he is at liberty afterwards to answer the plea of the defendant. The defendant must shew that the bargain stated by him justifies him in that which is the gist of the action, — the detainer; and then the plaintiff is at liberty to deny the contract as the defendant states it, or to shew (that being the true contract) that there is a wrongful detention on the part of the defendant. Bateman v. Ellman is exactly analogous to that case which I have mentioned from Dyer. The plaintiff declared, simpliciter, on a bailment to the defendant of plate, to be re-delivered on the 17th of May: on a plea of non detinet,—which put the whole of the declaration in issue (as it seems to have been considered in Mills v. Graham), the jury found specially, that the goods were bargained and sold to the defendant by indenture, on a condition, that, if the plaintiff paid such a sum upon the 17th May following, the bargain should be void; and they found that the money was paid on that day. No doubt that was a finding of a delivery on different terms from those stated in the declaration; but the court said it was well enough; for, the condition being performed by payment of the money, the plaintiff ought to have the goods again, and then the detention is a tort. That case, as it seems to me, shews that the plaintiff is not tied down to the terms of bailment stated in his declaration." And, after observing - upon the cases of Kettle v. Bromsall and Mills v. Gra- (a) 2 C. & M. 672. (d) Hilary, 4 W. 4. Pleadings in particular Actions, III. (e) 9 M. & W. 19. 1849. CLOSSMAN V. WHITE |